Obama Grants Himself License To Kill
This is the power claimed by kings and tyrantsBy Andrew P. Napolitano

February 07, 2013 "Information
Clearing House"
- After stonewalling for more than a year federal judges
and ordinary citizens who sought the revelation of its
secret legal research justifying the presidential use of
drones to kill persons overseas – even Americans – claiming
the research was so sensitive and so secret that it could
not be revealed without serious consequences, the government
sent a summary of its legal memos to an NBC newsroom earlier
this week.

This
revelation will come as a great surprise, and not a little
annoyance, to U.S. District Court Judge Colleen McMahon, who
heard many hours of oral argument during which the
government predicted gloom and doom if its legal research
were subjected to public scrutiny. She very reluctantly
agreed with the feds, but told them she felt caught in "a
veritable Catch-22," because the feds have created "a
thicket of laws and precedents that effectively allow the
executive branch of our government to proclaim as perfectly
lawful certain actions that seem on their face incompatible
with our Constitution and laws, while keeping the reasons
for their conclusion a secret."

She
was writing about President Obama killing Americans and
refusing to divulge the legal basis for claiming the right
to do so. Now we know that basis.

The
undated and unsigned 16-page document leaked to NBC refers
to itself as a Department of Justice white paper. Its logic
is flawed, its premises are bereft of any appreciation for
the values of the Declaration of Independence and the
supremacy of the Constitution, and its rationale could be
used to justify any breaking of any law by any "informed,
high-level official of the U.S. government."

The
quoted phrase is extracted from the memo, which claims that
the law reposes into the hands of any unnamed "high-level
official," not necessarily the president, the lawful power
to decide when to suspend constitutional protections
guaranteed to all persons and kill them without any due
process whatsoever. This is the power claimed by kings and
tyrants. It is the power most repugnant to American values.
It is the power we have arguably fought countless wars to
prevent from arriving here. Now, under Obama, it is here.

This
came to a boiling point when Obama dispatched CIA drones to
kill New Mexico-born and al-Qaida-affiliated Anwar al-Awlaki
while he was riding in a car in a desert in Yemen in
September 2011. A follow-up drone, also dispatched by Obama,
killed Awlaki’s 16-year-old Colorado-born son and his
American friend. Awlaki’s American father sued the president
in federal court in Washington, D.C., trying to prevent the
killing. Justice Department lawyers persuaded a judge that
the president always follows the law, and besides, without
any evidence of presidential law breaking, the elder Awlaki
had no case against the president. Within three months of
that ruling, the president dispatched his drones and the
Awlakis were dead. This spawned follow-up lawsuits, in one
of which McMahon gave her reluctant ruling.

Then
the white paper appeared. It claims that if an American is
likely to trigger the use of force 10,000 miles from here,
and he can’t easily be arrested, he can be murdered with
impunity. This notwithstanding state and federal laws that
expressly prohibit non-judicial killing, an executive order
signed by every president from Gerald Ford to Obama
prohibiting American officials from participating in
assassinations, the absence of a declaration of war against
Yemen, treaties expressly prohibiting this type of killing,
and the language of the Declaration, which guarantees the
right to live, and the Constitution, which requires a jury
trial before the government can deny that right.

The
president cannot lawfully order the killing of anyone,
except according to the Constitution and federal law. Under
the Constitution, he can only order killing using the
military when the U.S. has been attacked or when an attack
is so imminent that delay would cost innocent lives. He can
also order killing using the military in pursuit of a
declaration of war enacted by Congress.

Unless
Obama knows that an attack from Yemen on our shores is
imminent, he’d be hard-pressed to argue that a guy in a car
in the desert 10,000 miles from here – no matter his
intentions – poses a threat so imminent to the U.S. that he
needs to be killed on the spot in order to save the lives of
Americans who would surely die during the time it would take
to declare war on the country that harbors him, or during
the time it would take to arrest him. Under no lawful
circumstances may he use CIA agents for killing. Surely, CIA
agents can use deadly force defensively to protect
themselves and their assets, but they may not use it
offensively. Federal laws against murder apply to the
president and to all federal agents and personnel in their
official capacities, wherever they go on the planet.

Obama
has argued that he can kill Americans whose deaths he
believes will keep us all safer, without any due process
whatsoever. No law authorizes that. His attorney general has
argued that the president’s careful consideration of each
target and the narrow use of deadly force are an adequate
and constitutional substitute for due process. No court has
ever approved that. And his national security adviser has
argued that the use of drones is humane since they are
"surgical" and only kill their targets. We know that is
incorrect, as the folks who monitor all this say that 11
percent to 17 percent of the 2,300 drone-caused deaths have
been those of innocent bystanders.

Did
you consent to a government that can kill whom it wishes?
How about one that plays tricks on federal judges? How long
will it be before the presidential killing comes home?

Andrew P. Napolitano,
a former judge of the Superior Court of New Jersey, is the
senior judicial analyst at Fox News Channel. Judge
Napolitano has written eight books on the U.S. Constitution.

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